Chapter 1 - Ministerial Responsibility

Chapter 1 - Ministerial Responsibility

the mistakes and failings recently identified in
relation to the Government's immigration arrangements;

the Government's response to those failings to
date; and

the extent to which the relevant Minister(s) should
be held responsible for these failings.

Cultural problems within DIMIA

1.2
The present inquiry was established following serious
allegations of significant failings in relation to the Government's immigration
arrangements. These failings subsequently came to wider public attention
through two high profile cases which highlighted fundamental problems within
the Government's immigration systems — the wrongful detention of an Australian
resident, Ms Cornelia Rau, and the improper deportation of an Australian
citizen, Ms Vivian Alvarez Solon.

1.3
The circumstances surrounding these cases are well
documented in two recent reports to Government – the Palmer
Report,[3]
which details the Rau affair, and the Comrie Report,[4] which details the Alvarez
affair. The findings, recommendations and implementation of these reports are
considered in more detail where relevant in other chapters of this report.
However, it is worth noting that both reports are highly critical of the
leadership, management, actions, systems and processes of DIMIA. They detail
the department's 'systemic' and 'catastrophic' failings in relation to these
matters.[5] In particular, the findings
of the Palmer Report
point to the need for broader cultural change within DIMIA. Indeed, the Palmer
Report concluded that there is a 'serious
cultural problem within DIMIA's immigration compliance and detention areas' and
that 'urgent reform is necessary'. The report went on to say:

The combination of pressure in these areas and the framework
within which DIMIA has been required to operate has given rise to a culture
that is overly self-protective and defensive, a culture largely unwilling to
challenge organisational norms or to engage in genuine self-criticism or
analysis.[6]

1.4
The Comrie Report supported the findings and
recommendations made in the Palmer
Report, and indeed, concluded that 'many of
the systemic problems identified by both investigations had been present in
DIMIA for some years'.[7]

Government response

1.5
At the committee's hearing on 11 October 2005, a representative of DIMIA told
the committee that a range of legislative and other changes had been
implemented in recent months. Subsequent chapters of this report discuss many
of these changes in greater detail. However, it is worth noting here that these
changes involved amendments to the Migration Act relating to detention
arrangements, as announced by the Prime Minister on 17 June 2005. This included, for example,
amendments to allow the Commonwealth Ombudsman to review the cases of long-term
detainees; and to widen the Minister's discretionary powers — for example, so
that the Minister is now able to specify alternative arrangements for a
person's detention and to grant a visa to a person in detention.[8]

1.6
Further organisational and administrative changes have
been, or are being, made within DIMIA. In particular, to facilitate a change of
culture within DIMIA the senior administration within DIMIA has largely been
replaced. A new Departmental Secretary, Mr
Andrew Metcalfe,
has been appointed. A range of other senior managers have also been appointed,
including three new Deputy Secretaries, as well as over 40 promotions,
transfers and appointments to DIMIA's Senior Executive ranks to date.[9]

1.7
The committee was told that the new Departmental Secretary
has focussed on cultural change within DIMIA, emphasising to all staff that, in
order to respond appropriately to the Palmer and
Comrie Reports, and to meet the expectations of the Government, the Parliament
and the wider community:

...the culture of the department must be focussed on the three
main goals: a more open and accountable organisation, fair and reasonable
dealings with clients, and well trained and supported staff.[10]

1.8
The new Secretary, who commenced with DIMIA on 18 July,
has established a Change Management Task Force, which has developed an
implementation plan to improve the structure and workings of DIMIA.[11]

1.9
The committee was told that the Government has
committed $230 million to achieving change within DIMIA. According to a
representative of DIMIA, funding has been provided to implement a range of measures,
including to:

establish a College of Immigration Border Security
and Compliance to deliver comprehensive, tailored operational training for
DIMIA officers, with an emphasis on quality assurance and decision making;

continue improving the delivery of immigration
detention health services, including through the development of a long-term
detention health service delivery strategy;

improve case management and coordination,
including a 12-month pilot program to develop a community care model in
partnership with community organisations;

1.10
Finally, the committee notes that both the Prime
Minister and the Minister for Immigration have acknowledged that mistakes were made,
and have apologised to both Ms Rau
and Ms Alvarez.[13]

Ministerial responsibility

1.11
While DIMIA itself has undergone a number of changes,
and apologies have been made, the question must be asked to what extent the
relevant Minister(s) should be held responsible for the 'systemic' and
'catastrophic' failings identified by the Palmer and Comrie Reports. Unfortunately,
due to the restricted terms of reference imposed on these inquiries by the
Government, neither report focussed on the questions of whether, and to what
extent, the Minister responsible for DIMIA should be held responsible for these
failings.[14]

1.12
However, following the release of these reports, the
Opposition questioned whether the Immigration Minister should be held responsible
for DIMIA's failings. For example, Leader of the Opposition in the Senate, Senator
Chris Evans
stated:

Mr Comrie has done an
excellent job in providing his report. It is the latest revelation of
incompetence and mismanagement in Senator Vanstone’s department. It
reinforces, unfortunately, many of the damning findings of the Palmer report into the
case of Ms Rau. Mr Palmer commented that it
was difficult to see how the people responsible for such failed practices, poor
decisions and regrettable outcomes could have the credibility and objectivity
to bring about the fundamental change of mindset that is necessary. But Senator Vanstone ignored that
finding and recommendation by Mr Palmer. Mr Howard, the Prime
Minister, also ignored that recommendation. Senator Vanstone remains
responsible for the department, although she accepts no responsibility for what
it does.[15]

1.13
The doctrine of individual ministerial responsibility is
central to the Westminster parliamentary
system. In general terms, the doctrine states that ministers are individually
responsible to the Parliament for actions taken under their authority. In
particular, this relates to the actions taken by the portfolio department and
agencies for which they are responsible. In the event of departmental error,
the principle requires that the minister accepts responsibility for the mistake
and if possible corrects it. If the departmental failure is sufficiently
serious, the minister should resign.

1.14
However, the committee notes that the doctrine has
evolved, and continues to evolve over time. Over the past 30 years, as
government departments have grown larger, more complex and diverse, new
accountability mechanisms have been introduced to provide a necessary
counterbalance to the growth of bureaucratic decision-making and its impact on
the lives of ordinary people and businesses. Examples of accountability
mechanisms which now apply to government departments include the Freedom of
Information legislation, the Commonwealth Ombudsman, judicial review of
decisions, and the Senate Estimates process.

1.15
As a result of the growth in public sector
administration and accountability, the doctrine has been eroded. Ministers are accepting
less direct responsibility for actions taken under their authority. Given the
extremely broad range of issues that modern government departments deal with, it
would be unreasonable for ministers to be expected to take responsibility for
all of the actions of those under their authority. The principle in its
contemporary form therefore does not cover situations beyond a Minister's
knowledge, in which case the Departmental Secretary or some other senior
official must take responsibility.

1.16
The Prime Minister has also released guidelines on
ministerial responsibilities entitled A
Guide on Key Elements of Ministerial Responsibility. According to these
guidelines:

Ministers do ... have overall responsibility for the
administration of their portfolios and for carriage in the Parliament of their
accountability obligations arising from that responsibility. They would
properly be held to account for matters
for which they were personally responsible, or where they were aware of problems but had not acted to
rectify them.[16] [emphasis added]

1.17
These two circumstances conveniently cover the two
situations that the committee considers to be at the heart of the allegations
against the Minister for Immigration, Senator the Hon. Amanda
Vanstone and the former minister, the Hon.
Mr Philip Ruddock MP.
That is:

the apparent failure of the former Minister to properly
exercise his discretionary powers under sections 351, 417 and 501 of the Migration Act 1958; and

the failure of the former and current Ministers
for Immigration to act to rectify the 'systemic' and 'catastrophic' problems
within the culture of the Department of Immigration and Multicultural and Indigenous
Affairs prior to the public outcry over the fate of Cornelia Rau and Vivan
Solon.

Personal responsibility

1.18
From time to time, legislation grants ministers special
discretionary powers regarding particular issues. The use of these special
powers may have implications, which at times can be far-reaching, on the
individual rights of real people. Under these circumstances, it is reasonable
to expect that certain safeguards will be put in place to counterbalance the
use of discretionary power. As a general rule, the greater the powers granted,
the higher the degree of ministerial responsibility which must be demanded.

1.19
In relation to immigration policy, successive
governments have acknowledged the need for greater safeguards when individual
liberties are at risk:

Protection of individual liberty is at the heart of Australian
democracy. When there exist powers that have the capacity to interfere with
individual liberty, they should be accompanied by checks and balances
sufficient to engender public confidence that those powers are being exercised
with integrity.[17]

1.20
The Migration Act grants the Minister for Immigration a
wide range of discretionary powers. In general, these powers allow the Minister
to intervene in various circumstances where the Minister thinks that it is in
the public interest to do so. For example, the Minister is able to intervene personally
in visa applications after the Migration Review Tribunal or the Refugee Review
Tribunal hands down a decision, where the Minister thinks that it serves the
public interest.[18]

1.21
In March 2004, a Senate Select Committee prepared a report
on Ministerial Discretion in Migration Matters. The report noted that the
ministerial discretion powers relating to visa applications were inserted into
the Migration Act to 'provide an
outlet to deal with difficult cases that did not fit statutory visa criteria'[19]. The report found that the information
provided by DIMIA on the use of ministerial discretionary powers in some cases
seems 'to raise more questions than they answer, creating room for speculation
about [Minister Ruddock's] use of his powers'.[20]

1.22
According to the report, in cases where the
discretionary power is used to grant a visa, the sole accountability mechanism is
a requirement that the minister table in parliament his or her reasons for
thinking intervention is in the public interest. This was often seen to be
lacking. Other than this requirement, the powers are non-compellable,
non-reviewable and non-delegable. The report found that 'the lack of
transparency and accountability of the minister's decision making process is a
serious deficiency in need of urgent attention'.[21]

1.23
In the committee's view, there can be no doubt that
Ministers must be personally accountable where they personally exercise power.

Were Ministers aware of DIMIA's cultural problems?

1.24
Soon after the Palmer
Report was made public, the Prime Minister
was asked whether, in light of the report's findings, he had considered
replacing the Minister. The Prime Minister responded:

No ... because I don’t think the circumstances supported such a
decision. I indicated last weekend that Ministers should go if they are
directly responsible for significant failings, or mistakes or if their
continued presence in the Government is damaging to the Government. I have full
confidence in Senator Vanstone.
I don't think for a moment in the circumstances of this case either of those
conditions arose.[22]

1.25
However, in the committee's view, the 'defensive and
self-protective' culture[23] that has
developed in the department has been a direct result of the government's tougher
immigration policy, led and implemented by Ministers Ruddock and Vanstone. The committee
believes that senior officials within the department have been captured by the
government's own culture. Further, the committee considers that it is inappropriate
for Ministers to hide behind a departmental 'culture' which, in the committee's
view, has developed in response to the needs and demands of Ministers Ruddock
and Vanstone.

1.26
As noted earlier in this chapter, the Palmer
Report concluded that there is a serious
cultural problem within DIMIA and that 'urgent reform is necessary'. The report
identified one of the reasons behind this cultural problem was 'the framework
within which DIMIA has been required to operate'.[24] This clearly demonstrates that the
government's immigration detention policy, which has undergone drastic
modification and strengthening over the past five years, has contributed to the
cultural problems within DIMIA. The committee is of the view that it is the
responsibility of the relevant department to implement government policy. It
must fall upon the department to set up effective management and administrative
processes to carry out government policy. However, the committee considers that
the Minister must ensure that government policy is being effectively, fairly
and humanely implemented, particularly in circumstances where there are such
wide-ranging and fundamental policy shifts as have been experienced in
immigration policy over the past five years. The committee is concerned that this
did not happen, and that Ministers appear to be seeking to avoid responsibility
which is rightly theirs.

1.27
The committee also notes that many of the serious and
systemic cultural problems stem from the upper echelons of DIMIA's compliance
and detention management area[25] — that
is, senior officials that on occasions would be in daily contact with the
Minister and his or her advisers. The Palmer Report notes that the established
DIMIA organisational structure and arrangements 'fail to deliver the outcomes
required by the government in a way that is firm but fair and respects human
dignity'.[26]

1.28
The findings of serious cultural problems within DIMIA
which were raised by the Palmer Report
were also supported by the Comrie Report:

It is reasonable to conclude that the problems discussed in the Palmer
report were entrenched in DIMIA back in 2001, when the events associated with Vivian
began.[27]

1.29
The Comrie Report further stated that:

Since the circumstances of the Alvarez matter
first arose in 2001 and the Palmer report
focused on matters that occurred in 2004, this Inquiry ... concludes that many of
the systemic problems identified by both investigations had been present in
DIMIA for some years.[28]

1.30
The committee believes this begs the question: why then
did the government, and in particular the Minister, not act earlier to insist
that DIMIA change its management approach in order to effectively and fairly
deliver the government's immigration detention policy?

1.31
As one journalist noted after the release of the Palmer
Report:

The ministers set the tone, the parameters and the mindset. The
officials, senior and otherwise, were merely mechanics trying to read and to
respond to what ministers wanted. Nothing would have changed if the Rau and Alvarez
cases had not been exposed.[29]

1.32
The committee endorses the view of Professor
Richard Mulgan,
Director of the Policy and Governance Program in the Asia Pacific School of
Economics and Government at the Australian
National University:

Responsibility for a departmental culture of harshness must lie,
in part, with the minister herself, as well as with her predecessor, Philip
Ruddock, and the Prime Minister, John Howard, who public backed a hard-line
asylum and refugee policy.[30]

1.33
As the Minister for Citizenship and Multicultural
Affairs himself recently acknowledged to Parliament, DIMIA has, since 2001, merely
done what the Government has instructed it to do.[31]

1.34
A final matter that arises in relation to ministerial
responsibility is the role of the minister's office and the minister's
advisers. As became apparent in the Comrie inquiry, the Minister's staff play a
vital role in many aspects of the department's day-to-day administration. As
questioning during the Committee's hearings demonstrated, in the case of the
removal of Vivian Alvarez,
emails relating to Ms Alvarez
were sent to the Minister's office on 4
April 2005, yet were not responded to until 21 April 2005 – seventeen days later.[32] However, notwithstanding the clear
involvement of the Minister's office in the affair, the terms of reference for
the Comrie inquiry clearly excluded the Minister and her staff from any
investigation.[33]

Committee view

1.35
The roles, powers and corresponding accountabilities of
ministers vis-a-vis their departments have been changing considerably over the
past decade. As this chapter has examined in the context of the Migration Act,
there has been a simultaneous growth in the extent of ministerial discretion
and decline in the traditional doctrine of ministerial responsibility for the
actions and administration of their department. Much of this is necessary and
justified given the complexity of public administration and the wide ranging
scope of departmental decision making.

1.36
Nevertheless, the committee considers it important that
accountability measures keep pace with these developments. In particular, the
creation of terms of reference for inquiries that exclude the Minister and the
office is simply not acceptable. This is particularly the case given the wider
context in which Senate Committees are unable to question either Ministers or
their staff.[34] As such, scrutiny is
therefore non-existent in the most important area of public administration.

Recommendation
1

1.37
The committee recommends that the terms of reference
for any future independent inquiries into the administration of the Migration
Act provide the authority for the investigation to include both the Minister
and the Minister's office.